Australia: NSW Government Bulletin: The mandatory criteria in unfair dismissal applications

The recent decision of Bobrenitsky v Sydney Trains [2023] FCAFC 96 (FC decision) has again highlighted that the areas of industrial and workplace law are highly technical. In the FC decision, the Full Court of the Federal Court of Australia reviewed an earlier appeal decision made by the Full Bench of the Fair Work Commission (FWC) regarding an unfair dismissal application brought by a former employer of Sydney Trains, Mr Bobrenitsky (FWC decision).

In the case of the unfair dismissal regime under the Fair Work Act 2009 (Cth) (FW Act), the overarching legal tests involve assessment on the facts as well as mandatory considerations that the FWC must consider when making any decision.

The FC decision not only highlights the need to ensure the FWC addresses all the mandatory criteria when making its decision but also provides relevant lessons for employers to consider when dealing with dismissals.

What happened in this case?

On Sunday, 16 August 2020, Mr Bobrenitsky was arrested on suspicion of impaired driving along the Great Western Highway in Warrimoo, NSW. The results of a breath analysis test showed that he had a blood alcohol content of more than four times the limit prescribed in NSW. At the time, Mr Bobrenitsky was employed by Sydney Trains as a train driver but was not working on the day of the incident.

Mr Bobrenitsky attended work the following morning (17 August 2020) and drove a train. It was not until three days later that he submitted a written notification advising Sydney Trains that he had been charged with a high-range prescribed concentration of alcohol (PCA) offence.

On the following Monday, 24 August 2020, Sydney Trains suspended Mr Bobrenitsky from his duty and commenced a disciplinary process, which later resulted in Mr Bobrenitsky being dismissed from his employment. During the disciplinary process, Sydney Trains alleged that Mr Bobrenitsky breached the "Transport for NSW Code of Conduct", which was applicable to Mr Bobrenitsky at the time because he had been ".charged by the NSW Police force (NSWPF) with a high-range Prescribed Content of Alcohol (PCA) criminal offence".

In a later communication from Sydney Trains to Mr Bobrenitsky on 24 November 2020, the same conduct was described as constituting serious misconduct within the meaning of the applicable enterprise agreement because he had been charged and subsequently convicted of a high-range PCA criminal offence. Mr Bobrenitsky was subsequently dismissed on 13 January 2021 with his employment being ultimately terminated on 18 February 2021 after a review of the decision to terminate was requested by Mr Bobrenitsky.

As the matter was heard by the FWC, Sydney Trains also contended that there was a valid reason for dismissal because on the morning of 17 August 2020, Mr Bobrenitsky had "failed to take steps to ensure that he could operate [a] train safely". This was in addition to the reasons put to Mr Bobrenitsky during the disciplinary process which led to his dismissal. In other words, the reasons for dismissal which Sydney Trains put to Mr Bobrenitsky during the disciplinary process were based on Mr Bobrenitsky's conduct on 16 August 2020, whereas the valid reason contended before the FWC included Mr Bobrenitsky's conduct on 17 August 2020.

Was there a valid reason?

Firstly, the FWC decision provides useful insight on how conduct occurring outside of work hours could be a valid reason for dismissal because the Full Bench of the FWC held that Mr Bobrenitsky's conduct on 16 August 2020 was sufficiently connected to his employment as to warrant his dismissal.

Secondly, in the FC decision, the Full Court reiterated that in order to be satisfied that there was a valid reason, the FWC is not constrained by the matters that the employer puts forward to defend the dismissal but rather the FWC must determine whether in all the circumstances, viewed objectively, there was a valid reason for dismissal, even if it was not the reason put forward by the employer. As such, the Full Bench of the FWC could find that there was a valid reason for dismissal based on Mr Bobrenitsky's conduct on 17 August 2020.

Was Mr Bobrenitsky notified of the reason or reasons for his dismissal?

In the course of the Full Bench of the FWC re-determining the unfair dismissal application and finding that there was a valid reason for dismissal, the Full Bench did not consider, or did not appear to have considered, the fact that the valid reason the Full Bench relied upon (i.e. Mr Bobrenitsky's conduct on 17 August 2020) was not put to Mr Bobrenitsky during the disciplinary process.

In that context, the Full Court of the Federal Court of Australia examined section 387 of the FW Act, being the criteria for considering harshness etc., and determined that each of its criteria, including the requirement that the employee be notified of a valid reason and given an opportunity to respond, were mandatory for the Full Bench to consider when making its decision on appeal which the Full Bench had failed to do so. This led to an error in the decision-making process that invalidated the decision.

As a result, the Full Court could not be satisfied that if the Full Bench had considered the "mandatory considerations" it would not have made a different decision. It held that notwithstanding ".the existence here of the valid reason upon which the full bench accepted that Mr Bobrenitsky's dismissal was warranted, it is at least conceivable that the FWC might have considered that the dismissal was harsh, unjust or unreasonable for one of procedural fairness."

Accordingly, the FWC decision was quashed and the matter was remitted for a rehearing.

Lessons and outcomes

This is a long continuing matter that displays the complexity of determining the validity of a dismissal. The FC decision highlights the need for employers to assess all of the factual material early, and often in compressed time conditions, to articulate the reason or reasons for why the employer is considering taking disciplinary action, including dismissal. This is not an easy task for employers and requires discipline to 'stand back' from the facts and carefully consider how on their own or in totality they are contrary to the position or the standards of conduct required by the employer.

The series of decisions leading to this outcome also features the nature of the unfair dismissal jurisdiction which contains broad concepts for the FWC to apply when assessing the facts and any technical and mandatory considerations. It is also important for employers to assist the FWC in ensuring they identify and consider the mandatory factors required, while noting that they are not determinative in and of themselves of the result.

More generally, this series of decisions leading to the FC decision deals with some of the complexities that arise when out of work conduct is relied upon as a reason for dismissal. The FWC decision is a useful point of reference for this issue.

This case is relevant for NSW government agencies who have opted for the federal system (i.e. the FW Act) rather than the state system, and may also be useful for those dealing with unfair dismissal claims as there are similar mandatory criteria under the Industrial Relations Act 1996 (which is applicable to a majority of the NSW Government), including the requirement to provide a reason for the dismissal and an opportunity to respond.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.